Find a Lawyer

Criminal Appeal No. 86/1 of 1983, decided in 13th August, 1983.

-- S. 12-Penal Code (XLV of 1860), S. 377-Unnatural offence--- Kidnapping-Complainant allegedly violated in a khud of very low depression stated to be at a distance of 18 Karams from place where accused met him but khud not shown in plan and prosecu tion witness not deposing at trial that he had seen khud-Solitary statement of complainant that he was dragged to a khud, held, could not be relied on.

-- S. 12-Penal Code (XLV of 1860), S. 377-Abduction-Complai nant taken from railway phattak to a nearby place-Act of abduc tion, held, not constituted and provisions of S. 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 not attracted--- Accused acquitted of charge under S. 12.

-- S. 377-Unnatural offence-Allegation of complainant that he was subjected to carnal intercourse on a hard ground not support ed by-medical evidence-Presence of eye-witnesses at spot becom ing doubtful-Prosecution, held, failed to bring home charge to accused-Conviction and sentence set aside.

-- S. 377-Evidence Act (I of 1872), S. 45-Unnatural offence ---Evaluation of evidence-Report of Chemical Examiner not signed by him but by his Assistant-Report, held, of no help to prosecu tion.

P L D 1977 Kar. 1019 ref.

M. Bilal for Appellants.

S. M. Naeem for the State.

Date of hearing: 13th August, 1983.

Shafa Ullah and his cousin Inayat Ullah resident of Dera Begu Khelanwala Dakhli Mouza Rokhri, Tehsil and District Mianwali were charged and tried for offence under section 12 of Ordinance VII of 1979 and section 377, P. P. C. by the learned Additional Sessions Judge, I Mianwali who vide his judgment, dated 31st May, 1983 finding both the appellants guilty of the offences mentioned above, convicted the appel lants accordingly and sentenced both of them to 10 years' R. I. under section 12 of the Ordinance VII of 1979 and a fine of Rs. 5,000 each or in default to one year's further R. I. Both of them were also sentenced to 10 years' R. I. plus a fine of Rs. 5,000 or in default to one year's R. I. under section 377, P. P. C. The sentences were ordered to run concurrently. It was also ordered that the entire amount of fine, if recovered be paid to Shamas Saeed Ahmad complainant by way of compensation. Through the present appeal the above conviction and sentence has been impugned.

2. The facts briefly stated are that Shamas Saeed Ahmad complai nant is a student of 10th class of the Government Jamia High School, Mianwali. He is a resident of Wandha Samandiwala Dakhli Mouza Ghundi situated at a considerable distance from Mianwali, therefore, he used to go to school on his bicycle. Three days prior to the lodging of the report i. e. on 18th April, 1981 at 4-30 in the evening he was on his way to his house when he reached near the Railway Level crossing he was surprised by Shafa Ullah and Inayat Ullah duly armed with a dagger and a pistol who stopped him and compelled him to submit to their lust under threat to his life. He was accordingly taken to a nearby Khud where he was made to lie on the ground, he was deprived of a shalwar and first Inayat Ullah subjected him the carnal intercourse and was follow ed by Shafa Ullah. During the process to complainant raised hue and cry which attracted Ali Khan and Muhammad Hayat P. Ws. who were passing nearby and on their arrival they saw Shafa Ullah committing sodomy on the complainant but Shafa Ullah immediately released himself from the act of carnal intercourse, and both of them made their escape good. The report of the occurrence was made by the complainant after three days of the occurrence because he was waiting the arrival of his father who bad gone to Bhakkar to attend his some private business.

3.. This report which is Exh. P.A. was taken down by Muhammad Akbar H. C. (P. W. 4) on 20th April, 1981. After recording the same he got the signature of the complainant in token of its correctness. He prepared the injuries statement of Shamas Saeed Ahmad and sent him for medical examination. On 22nd April, 1981 he received a sealed parcel pertaining to this case and delivered it to Muhammad Sultan Constable for its transmission to the Chemical Examiner at Lahore. The investiga tion was conducted by Muhammad Anis A. S. I. (P. W. 6) who recorded the statement of the witnesses under section 161, Cr. P. C. went to the spot and prepared the site plan Exh. P.D. correctly. On 20th April, 1981 Shamas Saeed Ahmad complainant produced semen stained shalwar P. 1 before the witness in hand. It was duly sealed and handed over to the Muharrar of the police station namely Muhammad Akbar. This witness tried to secure the arrest of the accused but they were not avail able and were declared proclaimed offenders. Both of the accused, however-were arrested by Muhammad Anis P. W. on 17th May, 1981 and on their search a 12 bore pistol P. 2 and a live cartridge P. 3 was recover ed from Shafa Ullah and taken into possession vide recovery memo. Exh. P. E. While searching Inayat Ullah accused a knife P. 4 was recovered from the pocket of his shirt which was taken into possession vide memo. Exh. P. F. Both the accused were also challaned under section 13 of the Arms Ordinance. After the completion of the case the challan was put in the Court.

4. At the trial the prosecution produced as many as 7 witnesses in support of its case. Both the appellants in their statements under sec tion 342, Cr. P. C. have denied the charge of abduction of and commis sion of carnal intercourse with Shamas Sued Ahmad complainant. They also denied the recovery of the pistol P. 1, live cartridge P. 2 and knife P. 4 from their possession. As to the charge against them, both stated that Shamas Saeed Ahmad used to tease girls who used to come to pakka outlets of the canal for washing their clothes and to take bath. On their protest some boys of the nearby Wandhas one day caught hold of Shamas Saeed Ahmad Khan -just to teach him a lesson and inserted a stick in his anus. The complainant did not know the names of any of those boys, but he knew them and falsely implicated them in collusion with the police.

They are innocent. The father of Shamas Saeed Ahmad has got this case registered against them just to extort money from them. -In support they produced one Aman Ullah Malik in their defence. The trial how ever, culminated in the impugned judgment.

5. I have heard the learned counsel for the parties and perused the record. The case of the prosecution mainly rests on the statement of Shamas Saeed Ahmad P. W. 1, Muhammad Hayat (P. W. 2), Dr. Muhammad Akram (P. W. 5) and the Report of the Chemical Examiner Exh. P.H. In the report lodged after three days of the occurrence and at the trial as well, the complainant has charged both the appellants for his abduction as well as carnal intercourse. This deposition by the complai nant, however, by itself would be sufficient unless it is corroborated by other oral or circumstantial evidence. It is a daylight occurrence and the place where the act of the alleged sodomy was enacted is not an isolated place, but none from the adjoining area was attracted to his hue and cry excepting his maternal-uncle namely Muhammad Hayat P. W. It is alleged by Shamas Saeed Ahmad that no sooner the two appellants met him, they deprived him of his bicycle and he was taken to a khud, was made to lie down on the ground and then was subjected to carnal inter course by the two appellants one after the other by force against his consent. The Khud where the complainant teas violated is alleged to be situated at a distance of 18 karams from the place where the appellants met the complainant for the first time. But strangely enough this Khud has not been shown in the site plan Exh. P.D. which has been prepared at the instance of the complainant. The learned trial Judge who happened to visit the spot his in para. 37 of the judgment also observed that he does not find any specific Khud of very low depression. Similarly Muhammad Hayat who appeared as P. W. 2 did not depose at the trial that he hari seen the Khud where the complainant was subjected to carnal intercourse or that the Khud was shown to him by the complainant. It will, therefore be very difficult to rely upon the solitary statement of the complainant that he was dragged to a Khud which has no existence for the purpose of subjecting him to carnal intercourse. Even otherwise the taking of Shamas Saeed Ahmad from the Pathak to another nearby place would not constitute an act of abduction, therefore, the provision of section of Ordinance Vii of 1979 would not be attracted. The appellants are,) therefore, acquitted of the charge under section 12 of the said Ordinance.

6. As the offence under section 377, P. P. C. is concerned we have the statement of the complainant, that of Muhammad Hayat and the medical evidence. The allegation of the complainant that he was subjected to carnal intercourse on a hard ground has not at all been supported by C the medical evidence. Had he been subjected to carnal intercourse on hard ground, in the first instance as alleged by him he would are received number of injuries on his both knees and ankles. The doctor who had examined him has not observed any such injuries or sign of such injuries on the person of complainant. Again had the complainant been subjected to carnal intercourse by two young men by force, his anus would have been extensively damaged and he would have immensely bled and his shalwar gore with blood but the doctor who examined him only found an abrasion x c.m. at 12 o'clock position just outside the anus and a laceration in the anus at 12 o'clock position. The admission of this witness at the trial has completely demolished the case of the prosecution when he stated at the trial that: -

"Laceration and abrasions as observed by me in this case could be the result of soft substance and the possibility of some hard sub stance like stick having been the cause of the aforesaid laceration and abrasions cannot be ruled out. The damage as done in case could not be more than the one observed even if the subject of the assault was subjected to carnal intercourse by the two accused now present in Court. I have stated keeping in view the ages of all the three involved. The possibility of more damage to the circumstances also cannot be entirely ruled out. I did not observe any injury other than the one already mentioned on person of Shamas Saeed Ahmad when examining him. In view of the laceration and abrasion as referred to above, Shamas Saeed Ahmad must have bled. Shamas Saeed Ahmad should have suffered a bit more bleeding in case he sat on some hard substance immediately after the occurrence. The wearing loin clothes or the shalwar by the victim should have suffered some stains of blood. No such cloth was produced before me."

7. The Report of the Chemical Examiner Exh. P.H. too would of no assistance to the prosecution because this report has not been signed by Chemical Examiner but is an attested copy of the Report signed by his, assistant. It is, therefore, not admissible in the evidence, reliance in this respect is placed on P L D 1977 Kar. 1019.

8. The statement of Muhammad Hayat (P. W. 2) too would not' take the case of the prosecution inch forward because the manner in which he has conducted himself is such that his presence at the spot has become) extremely doubtful, thus he cannot be relied upon.

9. The view, therefore, I take in the matter is that prosecution has, miserably failed to bring home the charge to the appellants, their appeal' is accepted, the order of the learned trial Court is set aside and they are acquitted of the delict. They have already been ordered to release forth with vide my short order, dated 13th August, 1983.

M. Y. H. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.